The American Civil Liberties Union and several lesbian, gay, bisexual, and transgender (LGBT) organizations have filed a lawsuit against the Camdenton R-III School District for configuring web filtering software to block hundreds of non-sexual LGBT-supportive websites while permitting access to anti-LGBT websites. For more info, see http://www.aclu.org/lgbt-rights/pflag-v-camdenton-r-iii-school-district.

A free blogging site, Blogetery.com, went dark less than two weeks ago, and its disappearance is stirring controversy about the obligations of Internet services and threats to free speech on the Web.

Visitors to Blogetery, which says it housed 73,000 blogs, now find a page that is blank except for a brief message saying “our server was terminated without any notification or explanation.” It directs browsers to a forum on another site, where a message posted on July 14 by “AffiliatePlex” described the abrupt termination by BurstNet Technologies, a Web hosting company in Scranton, Pa., saying it was done at the request of unnamed “law enforcement officials.”

BurstNet said in a statement on Monday that it had shut down Blogetery after the F.B.I informed it that the site included “a link to terrorist material,” including bomb-making instructions and an Al Qaeda list of Americans targeted for assassination. CNet News reported Monday that the material was connected to a new Al Qaeda recruitment magazine.

AffiliatePlex, the name on the forum posting, is also the name of an Internet marketing company in Toronto. It lists Blogetery as one of its services, along with marketing tools like a “Facebook cloaking script,” which its site describes as a way to sneak prohibited ads past Facebook’s human reviewers.

In an interview on Tuesday, Alexander Yusupov, who said he was the owner and sole employee of AffiliatePlex, said that he returned to Toronto from a weekend camping trip on July 12 and found BurstNet had pulled the plug on Blogetery.

Mr. Yusupov said the hosting company did not show him any law enforcement documentation or tell him where the terrorist material appeared on his site. “They just took it down,” he said.

BurstNet’s chief technology officer, Joe Marr, said in an interview on Tuesday that the Blogetery site had received five previous notifications in the last six months of improper material on its blogs. The previous ones were for links to copyrighted music, movies and software. Standard practice for BurstNet, he said, is to notify a site about illegal content, send a second warning after 24 hours, and disconnect the servers after 48 hours. Nearly all such issues are resolved within 24 hours, he said.

But not for Blogetery, Mr. Marr said. Last April, the blogging site was down for more than four days after it failed to address warnings.

The F.B.I., he said, did not order BurstNet to shut down the site. It did so, Mr. Marr said, because of this incident and Mr. Yusupov’s past troubles. “This isn’t the first time for him,” he said.

Mr. Yusupov said that he had responded to previous warnings from BurstNet “almost always within 24 hours.”

John Morris, general counsel at the Center for Democracy and Technology, said that while he did not know the details of the case, the shutdown does “encapsulate the fragility of free speech on the Internet” and its dependence on the behavior of private companies.

And Kurt Opsahl, a staff attorney for the Electronic Frontier Foundation, a digital rights group, said the “tragedy is that thousands of blogs will be taken offline for no good reason.”

Mr. Yusupov said he had backed up some of the blogging site’s data, but not all. And he said he was trying to negotiate with BurstNet to get the data so he could restart the blogging site with another hosting service. “This has been a big hassle for me,” he said.

Mr. Marr of BurstNet said the Blogetery server did “not get a lot of use or traffic,” suggesting the number of active users of the free blogging site was probably a tiny fraction of the 73,000 Blogetery claimed.

BurstNet, Mr. Marr said, does not screen the material on the servers it leases to customers, so it was unaware that the shutdown might put some bloggers in the dark. “We extend our sympathies and apologies to them,” he said.

US technology firms and privacy groups have called for an overhaul of privacy laws, saying the government has too much access to private online data.

Google, eBay and others have launched the Digital Due Process coalition, seeking to update the 1986 privacy act, passed before internet usage exploded.

It calls for warrants to be issued before e-mails and texts are handed over to law enforcement agencies.

It seeks more protection of data stored online and mobile tracking information.

Outdated law

The coalition is looking to re-write the Electronic Communications Privacy Act (ECPA) of 1986 that governs what kinds of private digital information the government has access to and how they may obtain it.

“It is not surprising that a law written in 1986 didn’t foresee the privacy protections we need some 25 years later,” Richard Salgado, Google’s senior counsel for law enforcement and information security told BBC News.

The coalition – which includes over 30 members drawn from the worlds of industry, privacy and academia – said the ECPA is “a patchwork of confusing standards that have been interpreted inconsistently by the courts”.

For example, law enforcement agencies can get access to some email information, instant messages, and other data stored online through simple subpoenas, not court-ordered warrants.

The coalition has recommended that a warrant be required before internet providers must hand over the online information – just as a warrant is required for a physical search of a suspect’s computer or filing cabinets.

It wants similar protection before mobile carriers turn over tracking information about customers.

It also want courts to ensure any real-time information like texts and instant messages are relevant to an investigation.

“The law needs to be clear that the same standard applies to email and documents stored with a service provider, while at the same time be flexible enough to meet law enforcement needs,” said Jim Dempsey of the Center for Democracy and Technology.

Dialogue

Members of the coalition said that had had discussions with the White House, the FBI and the justice and commerce departments.

They acknowledged that law enforcement agencies were likely to resist any change and a long debate was almost certain before Congress would act.

“We are not expecting that these will be enacted this year, but it’s time to begin the dialogue,” the CDT’s Mr Dempsey told reporters.

Senator Patrick Leahy, chairman of the Senate Judiciary Committee, said he planned to hold hearings on “much-needed updates” to the US privacy act.
Story from BBC NEWS:

To Chinese Internet censors, he’s infamous. To the rest of the world, he’s unknown.

As he clicked through the Web in a Silicon Valley coffee shop Thursday, you’d never guess that a half-million people in China, Iran and other countries depend on his software to evade Internet blocking and government surveillance, that an estimated 50,000 government software engineers in China are trying to stop him and others; and that a congressional panel debated not only how to help mighty Google in its confrontation with Chinese censorship this week, but also the work of this software engineer.

He’s testified before a congressional panel — anonymously — and when he was interviewed on national television, he was shot from behind and his voice disguised. For fear of the Chinese government, the soft-spoken Silicon Valley software consultant has kept his identity concealed. Until now.

“I realized that if you’re scared,” Alan Huang told the Mercury News in an exclusive interview, “the government can take advantage of that.”

Huang’s local company, UltraReach Internet, is among a group of companies that make up the Global Internet Freedom Consortium. Through the consortium’s simple software, often downloaded through an e-mail, a person can step outside whatever blocking or surveillance their country imposes and freely access anyplace on the Web.

A follower of the government-banned spiritual group Falun Gong, Huang helped develop the technology in 2002 to help members of that movement communicate. But he soon realized that access to unfiltered information, free of government surveillance, was a fundamental need, not tied to any single group or country. Huang was active in the democracy movement in China in 1989 before moving to the Bay Area in 1992.

While the largest share of the consortium’s traffic still comes from China, the service is seeing a surge from Iran — where the government cracked down last year on democracy activists using YouTube, Facebook and other social networking tools to communicate — and from Vietnam. The consortium also gets many users from Saudi Arabia, the United Arab Emirates and other countries — including the United States.

“If you don’t have privacy and security, you don’t have freedom,” Huang said.

Huang is cheering Google’s step this week of directing its Chinese search traffic to an unfiltered search service based in Hong Kong. He had, however, already decided that he no longer wanted to remain anonymous when a reporter tracked him down this week, saying the consortium’s circumvention software represents “the right side of technology, the right side of history.”

The consortium is one of many services that have become increasingly important tools for people within China to circumvent the “Great Firewall” over the past five years, said Xiao Qiang, director of the China Internet Project at the UC Berkeley and founder of the China Digital Times. He says the demand will only become greater.

“We haven’t even seen the full retaliation from the Chinese government” to Google’s move to stop censoring its Chinese search, Xiao said. “If Google is forced to withdraw from China, it will make this an even bigger market.”

The global attention Google generated when it stopped censoring search in China could also help the consortium make its services available to more people in all 180 countries it serves. On Wednesday, at a hearing in Washington before the Congressional-Executive Commission on China about Google, a debate over additional federal resources for the consortium and others offering circumvention technology became a central issue.

Mark Palmer, a former U.S. ambassador to Hungary and now of Freedom House, a human rights group, blasted the U.S. State Department for not distributing $30 million in already appropriated money to help the consortium buy more computer servers and hire paid staff. In January, a group of senators, led by Sen. Sam Brownback, R-Kan., wrote to Secretary of State Hillary Clinton, asking that the money be released.

“It’s clear from talking to my friends, both in the State Department and the White House, that one of the concerns that has led to this (delay) is concern about the Chinese reaction,” Palmer told the group of senators and House members on the commission. The State Department did not respond to multiple requests for comment.

Palmer told the congressional panel that if anti-censorship technology like the consortium’s could open up enough holes in the “Great Firewall” for enough people, the cyber-gymnastics Google did this week by moving its Chinese search to Hong Kong would be unnecessary, and people could go directly to Google’s main search engine. “Google’s in a fight and a martyred defeat will not help the cause,” he said.

The consortium provides free encryption software that also allows Internet users to switch IP addresses multiple times a second on a group of dedicated proxy servers scattered around the world, frustrating government blocking or surveillance in any country.

While it is a powerful technology because it is cheap compared with the expensive surveillance and blocking that the Chinese government does, the consortium is a shoestring operation, Huang says. After his daytime job as a software consultant, he works late into the night many evenings for the consortium, and spends his own money on hardware and services. Staffing is all volunteer. The consortium, which also includes Dynamic Internet Technology in North Carolina, has received government funding through the International Broadcasting Bureau, which funds ventures such as Voice of America.

Huang has become a U.S. citizen. But he says there are still reasons to fear the reach of the Chinese government, even here in the Bay Area, and he asked that where he lives and other personal details be kept private. While he applauded the step Google took this week, Huang said that he could not ignore that the company had agreed to Chinese censorship rules for four years.

“To me, I feel it’s kind of late,” he said, but added that he hoped the U.S. government would be tougher with China and that other companies would follow Google’s lead. “Microsoft should do the same thing; Yahoo should do the same thing; Cisco should do the same thing.”

Contact Mike Swift at 408-271-3648. Follow him at Twitter.com/swiftstories.

Well played, Google, or in pool table terms, nice leave. From the start, the Google-China stare-down held no hope of compromise (see “Outlook for Google’s China talks: nasty, brutish and short“), so the question became which side would succeed in framing the conflict and its consequences: Google, with its focus on censorship, or China, maintaining that all businesses are obliged to follow local laws.

* It followed through on its pledge to stop delivering a censored search service to China.

* It made China’s local-laws argument moot by moving the service to a different jurisdiction.

* It left the Chinese government to take direct responsibility for further censorship.

* It provided an avenue to keep its traffic from within China flowing.

* It avoided the perception of having abandoned China by continuing to offer search and by retaining its other business operations in the country.

The people of China still won’t see the same Internet as the rest of us. The searches they run through google.com.hk will display uncensored results, but the Great Firewall will still block users from clicking through to sites the authorities don’t want them to see. But at least it will be clearer to Chinese users what is being kept from them and who is doing the censoring.

As Google co-founder Sergey Brin told the New York Times, however, “The story’s not over yet.” China may yet cut off or otherwise restrict access to the Hong Kong servers or take other steps that would interfere with Google’s businesses. In 2½ months of negotiations, Brin said, the company never could get a straight answer from China as to whether the Hong Kong redirection was an acceptable option. “There was a sense that Hong Kong was the right step,” he said. “There’s a lot of lack of clarity. Our hope is that the newly begun Hong Kong service will continue to be available in mainland China.” And just so the world can see what the Chinese authorities are up to, Google has posted a page with a daily scorecard showing which of its services are open, blocked or partially blocked for mainland users.

Meanwhile, China’s official reaction bounced between anger and efforts to downplay the significance of the dispute. “Google has violated its written promise it made when entering the Chinese market by stopping filtering its searching service and blaming China in insinuation for alleged hacker attacks,” said an official with the State Council Information Office. “This is totally wrong. We’re uncompromisingly opposed to the politicization of commercial issues, and express our discontent and indignation to Google for its unreasonable accusations and conducts.” At the Foreign Ministry, spokesman Qin Gang said, “I cannot see an impact on China-US relations unless someone wants to politicize that. I cannot see any impact on China’s international image unless someone wants to make an issue of it. It is not China who has undermined its image, it is Google.”

That may be the party line, but the fact is that Google, with one simple and efficient stroke, has left China in a position where it has no legal argument to hide behind and, if it’s intent on keeping its citizens in the dark, no choice but to appear as the bad guy in front of one and all.

FRONT

Queermonton: Trans ban

For some, social networking is about making new friends. For others it’s just another way to contact the people already in your life. Dominic Scaia didn’t join Facebook to connect with classmates or family. He used it as a lifeline while navigating the difficult journey of transitioning from female to male. And on December 20 that lifeline was taken away when he woke up to find that his account had been disabled.

Dominic recently underwent a double mastectomy to create a male chest. His profile was set as male and listed under a male name. He was banned from Facebook after posting pictures after he’d undergone the top surgery. He’s tried to reach Facebook but has received no response about what happened to his account. Friends have also sent messages to the company, all of which have gone unanswered.

It’s unclear what bothered Facebook about Dominic’s photos. Section 3.7 of its Terms of Service regulates that content not be "hateful, threatening, pornographic" or contain "nudity or graphic or gratuitous violence." It’s clear a male chest falls into none of these categories. Scaia says, "They were from two-and-a-half weeks post-op and included my face. I was holding the camera from above, my chest was bare and I was wearing jeans. None of the photos were in the least bit gory."

Facebook does not moderate photographs individually. They rely on users to report offensive content. The only people who could view Scaia’s pictures were friends that he’d added to his account. He’d had the photos up for a week without a problem. The evening before he was banned, Dominic accepted a friend request from a young, flirtatious girl. He thinks she looked through his photos and discovered that the cute boy she’d added was not born physically male, choosing then to report his account.

It’s there where things become confusing. It’s Facebook’s policy to remove photos that are deemed offensive and to send a warning. It is not the company’s policy to disable accounts over photos. This does not mean that Facebook has a rule of banning transgender people, it means that one staff moderator made the grossly misinformed choice to ban his account.

I asked Dominic why he chose to upload the photos. He said to share them with his friends. "I was so proud of my new chest and I wanted to show it off, plus a lot of people had encouraged me to do so. Since it’s a male chest, I didn’t see a problem with it. Lots of transmen post their post-op photos on Facebook. It’s a huge milestone for us in our transition and a very happy moment—it’s only natural to want to share it with the world."

For many, losing an online account seems trivial but for some users it’s the only outlet they have. Numerous trans folks chronicle their transitions online, both for themselves and to educate others. Dominic used Facebook for keeping in touch with friends, blogging and activism. "I have over three years of stuff on that account. Thousands of photos, thousands of messages from people, notes, over 300 contacts—most of whom I don’t know how to get in touch with outside of Facebook."

When an account is disabled, nothing is deleted until Facebook makes a final decision, meaning Dominic’s account sits intact but frozen. He also points out that he’s not allowed to sign-up for a new profile because it’s against Facebook’s terms to create a new account once you’ve been banned.

So far, there is no concrete proof that Facebook disabled Dominic’s account because of the photos, since the company refuses to comment but it seems as if no other infraction could’ve caused the banning. I’m the first person to say that we should not shout discrimination until we’re sure, but it doesn’t take a PhD to connect the dots. When a transwoman is ejected from a women’s washroom at a bar, the only likely rational is transphobia. Facebook should not be rewarded with the benefit of the doubt for their refusal to comment.

"Yes, we are making the assumption, but it’s the only reason that would make sense. Quite frankly, Facebook can easily end the bad publicity and assumptions by offering a plausible explanation." says Jessica Hardwick, a moderator of the Un-Ban Dominic Scaia Facebook Group.

That group has grown exponentially, with nearly 3000 members since it launched last week. Scaia says, "I am overwhelmed and amazed by the huge response to this, it’s great that I have so many people on my side. This is helping raise awareness and hopefully will cause Facebook to be more sensitive to trans issues."

"This isn’t about just being on the site." adds Scaia. "They need to know that banning someone without notice is not acceptable. They also need to rethink their photo moderation policy, they need to be educated as to what post-op FtM chests look like. This is a discrimination issue and it doesn’t just affect me, it affects all transmen. If this happened to me, it can happen to them." V

Like many other well-known organizations, we face cyber attacks of varying degrees on a regular basis. In mid-December, we detected a highly sophisticated and targeted attack on our corporate infrastructure originating from China that resulted in the theft of intellectual property from Google. However, it soon became clear that what at first appeared to be solely a security incident–albeit a significant one–was something quite different.

First, this attack was not just on Google. As part of our investigation we have discovered that at least twenty other large companies from a wide range of businesses–including the Internet, finance, technology, media and chemical sectors–have been similarly targeted. We are currently in the process of notifying those companies, and we are also working with the relevant U.S. authorities.

Second, we have evidence to suggest that a primary goal of the attackers was accessing the Gmail accounts of Chinese human rights activists. Based on our investigation to date we believe their attack did not achieve that objective. Only two Gmail accounts appear to have been accessed, and that activity was limited to account information (such as the date the account was created) and subject line, rather than the content of emails themselves.

Third, as part of this investigation but independent of the attack on Google, we have discovered that the accounts of dozens of U.S.-, China- and Europe-based Gmail users who are advocates of human rights in China appear to have been routinely accessed by third parties. These accounts have not been accessed through any security breach at Google, but most likely via phishing scams or malware placed on the users’ computers.

We have already used information gained from this attack to make infrastructure and architectural improvements that enhance security for Google and for our users. In terms of individual users, we would advise people to deploy reputable anti-virus and anti-spyware programs on their computers, to install patches for their operating systems and to update their web browsers. Always be cautious when clicking on links appearing in instant messages and emails, or when asked to share personal information like passwords online. You can read more here about our cyber-security recommendations. People wanting to learn more about these kinds of attacks can read this Report to Congress(PDF) by the U.S.-China Economic and Security Review Commission (see p. 163-), as well as a related analysis(PDF) prepared for the Commission, Nart Villeneuve’s blog and this presentation on the GhostNet spying incident.

We have taken the unusual step of sharing information about these attacks with a broad audience not just because of the security and human rights implications of what we have unearthed, but also because this information goes to the heart of a much bigger global debate about freedom of speech. In the last two decades, China’s economic reform programs and its citizens’ entrepreneurial flair have lifted hundreds of millions of Chinese people out of poverty. Indeed, this great nation is at the heart of much economic progress and development in the world today.

We launched Google.cn in January 2006 in the belief that the benefits of increased access to information for people in China and a more open Internet outweighed our discomfort in agreeing to censor some results. At the time we made clear that “we will carefully monitor conditions in China, including new laws and other restrictions on our services. If we determine that we are unable to achieve the objectives outlined we will not hesitate to reconsider our approach to China.”

These attacks and the surveillance they have uncovered–combined with the attempts over the past year to further limit free speech on the web–have led us to conclude that we should review the feasibility of our business operations in China. We have decided we are no longer willing to continue censoring our results on Google.cn, and so over the next few weeks we will be discussing with the Chinese government the basis on which we could operate an unfiltered search engine within the law, if at all. We recognize that this may well mean having to shut down Google.cn, and potentially our offices in China.

The decision to review our business operations in China has been incredibly hard, and we know that it will have potentially far-reaching consequences. We want to make clear that this move was driven by our executives in the United States, without the knowledge or involvement of our employees in China who have worked incredibly hard to make Google.cn the success it is today. We are committed to working responsibly to resolve the very difficult issues raised.

Update: Added a link to another referenced report in paragraph 5.Posted by David Drummond, SVP, Corporate Development and Chief Legal Officer

Should members of the public be able to pay for Web advertisements detailing which companies have donated to politicians? While this seems like a great way to promote transparency in politics, Google forbids the practice–we are free to name the politicians who take money but cannot name the companies that give it.

With Google’s domination of the search engine market, and the eyeballs that go along with it, the company’s AdWords text ads have become a key way for activists, politicians, and corporations to reach the general public. However, over the past year, Google’s excessively restrictive policies have resulted in the censorship of lawful advertisements that educated and informed the public.

In one the cases involving religious groups placing anti-abortion ads, Google backed down. As this post will explore, Google’s rather absurd, and little known, trademark policy seriously harms the ability of citizens to highlight the donations made to politicians by large corporations.

Trademarks and AdWords
Over the past few years, Google has waged numerous legal battles in order to allow its advertising customers to purchase keyword ads for trademarked phrases. Thus, for example, Nike can make sure that ads for its shoes show up when a Web surfer searches Google.com for Reebok.

Under Google’s current trademark policy, Nike can purchase advertisements that will display information for the company’s own shoes, such as “Visit Nike.com to get great deals on shoes,” but Google forbids anyone but a trademark owner from using a trademarked phrase in an ad. Thus an ad stating that “Nike shoes are worn by Barack Obama, not Reebok” would be forbidden, even if Nike could prove it were true.

This example with two large corporations battling it out doesn’t really tug the heart strings. But what about the following few examples of ads, all of which are currently forbidden as per Google’s trademark policy?

* A labor rights group that wished to place an ad stating that “Wal-Mart forbids its employees from unionizing,” whenever someone searched for the phrase “minimum wage.”
* A public-interest group that wished to place an ad stating that “The RIAA has filed over 30,000 lawsuits against Internet users, many of whom were children, elderly, or even dead,” whenever a Google user searched for the words “file sharing.”
* An activist who wished to place an advertisement stating that “AT&T has given $7,500 since 2004. Who else has donated to the senator?” The ad would be displayed when Internet users searched for the name of a particular politician.

While these first two examples are hypothetical, the final one has actually been censored by Google. I know, because a few weeks ago, Google informed me that an ad campaign that I had run for the last 5 months was being terminated due to a trademark complaint by AT&T.

No sunshine allowed
As regular readers of this blog will know, I dabbled in a bit of tech policy activism in the state of Indiana earlier this year, working on a data breach bill that eventually became law. During the process of getting that bill through committee, I had a nasty run-in with a state senator who didn’t take too kindly to my blogging and was willing to hold up my bill as a way to force me to censor my criticism of his colleagues.

Once I left Indiana in May, I promptly registered multiple domain names for Republican State Senate whip Brandt Hershman, www.Brandt-Hershman.com and www.BrandtHershman.com. Both domains point to a single Web page that lists every campaign donation that Sen. Hershman has received, from all corporations, for the history of his political career.

In addition to setting up this Web site, I also placed a Google ad campaign so that anyone searching for “brandt hershman”, “senator hershman,” or a few other similar keywords would see an advertisement pointing to my site:

What does money buy?

AT&T has given $7,500 since 2004.
Who else has donated to the senator?
www.Brandt-Hershman.com

From June until December of this year, the ad ran without any complaints. However, on December 5, Google notified me that it had suspended my advertisement, based on a trademark complaint:

Thank you for advertising with Google AdWords. After reviewing your account, we’ve found that one or more of your ads or keywords does not meet our guidelines.

When I appealed the suspension of the ad, Google replied with a bit more information, informing me that AT&T had complained about my use of the company’s trademark:

Thank you for your email. I understand you’re concerned that the term(s) AT&T has been disapproved in your account as a trademark.

Please note that we received a complaint from the trademark owner of AT&T. In their complaint, the trademark owner stated that they are the owner of the mark and that its use in certain advertisements is not authorized. Therefore, your ad was disapproved.

When we receive a complaint from a trademark owner, we only investigate the use of the trademark in ad text. If the advertiser is using the trademark in ad text, we will require the advertiser to remove the trademark and prevent them from using it in ad text in the future.

Google permits trademark owners to submit blanket complaints regarding the use of their mark in advertisements. This means that with just one request, a company can force the removal of every single advertisement that contains the trademark, even if the use is legitimate and lawful.

It’s useful to compare Google’s trademark and copyright policies. If a copyright owner (say, the Church Of Scientology or Viacom) wishes to force the removal of a link from the Google search index or videos from YouTube, that company must send an individual request for each file or Web site.

If Viacom wants to have 100 episodes of The Daily Show removed from YouTube, it takes 100 requests. However, if Viacom wants to force the takedown of 100 different advertisements that mention The Daily Show, it only takes a single request.

The requirement that copyright owners send individual takedown requests is an important speed bump that protects the fair-use rights of end users, who might be incorrectly accused of violating copyright. No such protection currently exists for Google AdWords customers who wish to lawfully comment on or critique companies whose names are trademarked.

Legal analysis
To make that I wasn’t making a fuss out of nothing, I spoke to a number of prominent legal experts, all of whom shared my concern regarding the impact on free speech and transparency in politics.

First, I spoke with Wendy Seltzer, a fellow at Harvard’s Berkman Center (disclosure: I am also a fellow at Berkman) and founder of the Chilling Effects Clearinghouse. She told me that:

Google should be concerned that its actions here may actually hurt its (and its users’) ability to use trademarks for comparative and search purposes later. Google is now a large enough part of our Internet experience that its concessions to trademark bullies in AdWords could condition readers to think–incorrectly–that all uses of a trademark must be authorized by the trademark holder…

We need to resist this chipping-away at our rights to use brands to speak about the products they promote and things their owners do, and Google, as a major beneficiary of our prodigious use of language, should help us to do so.

Jim Harper, director of information policy studies at the Cato Institute also shared similar concerns:

What (Google) seems to be doing is accepting any complaint as conclusive proof that a trademark violation is occurring. This is a very poor practice, and it grants trademark owners power well beyond their legal rights. On a platform as important as Google’s, that will result in a significant diminution of communication about corporations and, in this case, politicians too.

While he was concerned about the impact on free speech, Eric Goldman, a professor at the Santa Clara University School of Law, expressed some sympathy for Google, due to the risk of litigation by trademark owners:

Presumably, AT&T has requested Google not to let any advertisers display “AT&T” in the ad copy–whether the advertisers are competitors, pirates or political speakers. Google is within its legal rights to do so, and there is some legal support for Google’s position.

This is not a good situation, but before we criticize Google too harshly, note that they face legal risks whatever they do, and they have tried to find a compromise solution…

Trademark law is so ridiculously expansive that Google feels compelled to implement illogical and chilling policies, so (in my opinion), the real villain is trademark law, not Google.

As both Goldman and Harper told me, Google is perfectly within its rights to refuse to display my advertisement, just as a newspaper or TV stations can refuse to air an ad. However, just as newspapers routinely publish advertisements that criticize companies, so, too, could Google, if it wished to.

The only recourse available to activists wishing to change Google’s policies is thus shame–a tactic that has worked pretty well in other similar situations.

Freedom of Speech and Abortion
Earlier this year, a British anti-abortion organization sued Google, after the search engine refused to display an advertisement that the group had sought. The text of the ad was:

U.K. Abortion law
Key views and news on abortion law from The Christian Institute
www.christian.org.uk

Before the lawsuit, Google’s policy did not permit the ads promoting Web sites that contained abortion and religion-related content. After a significant amount of bad press, and the settlement of the suit (brought under the United Kingdom’s Equality Act), Google reversed itself.

Google’s new policy allows religious associations to place ads “in a factual and campaigning way,” a Google spokesperson told the British media. She went on to describe the policy in more detail:

This means that their ads need to aim to educate and inform, not to shock. The ads can refer to government legislation, and existing law, and the alternatives to abortion. But, they cannot link to Web sites which show graphic images that aim to shock people into changing their minds.

Outside of the online-advertising space, U.S. telecommunications giant Verizon Communications caused a huge media firestorm in 2007, when it blocked short text message alerts by NARAL, a pro-choice group.

Within days of its anti-free-speech blunder, Verizon quickly backtracked. However, by then, the damage to its reputation was done. Both Congress and the FCC took an interest in the incident, leading to threats of oversight and investigation.

Obviously, abortion is a hot-potato issue that no Fortune 500 company wishes to get caught in the middle of. However, the issue for both Google and Verizon was the same–the companies sell products that enable people to communicate with each other. When they start deciding which kinds of information is appropriate to send, they risk a significant public outcry, as well as the attention of both regulators and Congress.

With any luck, Google will realize that its flawed AdWords trademark policy is hurting free speech and efforts to promote transparency in government. If it doesn’t, we all suffer.